How To Win (DMCA) Exemptions And Influence Policy

But we're in a world where disobedience is treated with felony
convictions. The idea that you are going to get lots of civil
disobedience against the Digital Millennium Copyright Act is just
crazy. You're going to get lots of prosecutions and people going away
to jail.

What is this?

The Digital Millennium Copyright Act
(DMCA)
is extensively
known now, being perhaps the most hated Internet law since the
Communications Decency Act censorship legislation. The DMCA's
chilling effects have been widely publicized, and seem only to increase.
One of the few parts of the DMCA which even attempts to moderate its
far-reaching restrictions, is a provision which directs the Copyright
Office of the Library of Congress to make an inquiry regarding
adverse effects of one of the DMCA's prohibition on circumvention.
If adverse effects are established, this office then has the power to
"exempt certain classes of works from the prohibition against
circumvention of technological measures that control access to
copyrighted works."

These Library of Congress DMCA proceeding are to be done every three
years. The last round took place in 2003. The upcoming round is the
next one, for results in 2006. The schedule is that
"Written comments are due by December 1, 2005", and in response
to those comments, "Reply comments are due by February 2, 2006."
These comments are intended to be evaluated in hearings in the spring
of 2006.

This is a chance for an ordinary person to influence the process of
policy-making, and perhaps convince the Library of Congress to
grant an exemption. The author of this article (Seth Finkelstein) was
the commenter primarily responsible in 2003 for persuading the Library
of Congress to grant one of the four exemptions determined, allowing
circumvention in order to access censorware blacklists.

Why do it?

There's a common view of technical people, that participation in
government falls somewhere between functionally useless and morally
perverse. It's easy to deride the clueless congresscreatures, and
take comfort in an idea of building an uncensorable realm located in
some other dimension. And it's not encouraging to be one letter in a
pile of mail to a Senator, or a few dollars versus the economic clout
of copyright industries. But not all aspects of influencing government
are so one-sided and unbalanced.

To begin with, making a submission in this DMCA rulemaking process is
comparatively easy. Whatever gains are made, are won at a trivially
small cost. This is a matter of drafting a letter, with some thought
and detail. It's not a multi-million dollar lobbying campaign. It's
not a lawsuit which drains someone's life. It's not anyone going to
jail. Rather, it's essentially drafting a letter, the same commitment
as happens every single day on so many mailing-lists and weblogs.

But unlike letters to congressional offices, these public comments are
truly read by the people who make the policy. That is in fact one of
the most astonishing aspects visible in the text of the earlier
rulemaking results. The policy-maker may not have agreed with the
arguments, may in fact have dismissed them; but there's enough
referencing and mention of the reasons for the results so as to make
it clear that the viewpoints of the public were heard. And
this consideration doesn't even require a large
bribe, I mean, campaign contribution. Not all parts
of the government are equally inaccessible. It turns out these
policy-making determinations are surprisingly amenable to informed
citizens making a difference.

What is in play?

The statutory focus of this rulemaking is limited to one subsection of
section 1201: the prohibition on the conduct of circumvention of
technological measures that control access to copyrighted works. ...
The Librarian has no authority to limit either
of the anti-trafficking provisions contained in subsections 1201(a)(2)
or 1201(b).

Roughly, the only DMCA aspect which can be softened is the prohibition
on accessing material. Nothing about making tools can be changed. That
is, this rulemaking CANNOT make distributing DeCSS code, or eBook
access programs, into an exempt act. It's clearly stated that the only
effects which may be considered, relate to the access circumvention
provision. This rulemaking is about doing, not coding or
distributing. Those other provisions are a battle for another time.

Nonetheless, even though coding and distributing are not in play here,
it's worthwhile to have as strong a record in favor of exemptions as
is possible. This is for the simple reason that it may help when those
next battles are fought.

What is to be done?

In order to get an exemption, there must be a "showing that the
prohibition has a substantial adverse effect on noninfringing uses of
a particular class of works.". Proponents have the burden of proof.
The specific details are (emphasis added):

In order to meet the burden of proof, proponents of an exemption
must provide evidence either that actual harm exists or that it is
“likely” to occur in the ensuing 3-year period. Actual
instances of verifiable problems occurring in the marketplace are
generally necessary in order to prove actual harm. The most
compelling cases of actual harm will be based on first-hand knowledge
of such problems. Circumstantial evidence may also support
a claim of present or likely harm, but such evidence must also
reasonably demonstrate that a measure protecting access was the
cause of the harm and that the adversely affected use was, in fact,
noninfringing.
“Likely” adverse effects may also support an
exemption. This standard of “likelihood” requires proof
that adverse effects are more likely than not to occur. Claims based
on “likely” adverse effects cannot be supported by
speculation alone. The House Manager's Report stated that an
exemption based on “likely” future adverse impacts
during the applicable period should only be made “in
extraordinary circumstances in which the evidence of likelihood is
highly specific, strong and persuasive.”
...
Nevertheless, as the
Register's final recommendation of 2000 explained, the expectation
of “distinct, verifiable and measurable impacts” in the
legislative history as to actual harm suggests that conjecture alone
would be insufficient to support a finding of “likely”
adverse effect. ....

Although a showing of
“likely” adverse impact will necessarily involve
prediction, the burden of proving that the expected adverse effect
is more likely than other possible outcomes rests firmly on the
proponent of the exemption.

The identification of existing or likely problems is not, however,
the end of the analysis. In order for an exemption of a particular
class of works to be warranted, a proponent must show that such
problems warrant an exemption in light of all of the relevant
facts. The identification of isolated or anecdotal problems will be
generally insufficient to warrant an exemption of a class of works.
Similarly, the mere fact that the digital format would be more
convenient to use for noninfringing purposes is generally
insufficient factual support for an exemption. Further, purely
theoretical critiques of Section 1201 will never satisfy the
requisite showing. ... Proponents of
exemptions must show sufficient harm to warrant an exemption

Translation: No ranting from any Libertarian Book-Of-Rand. No
repetitions of "I own it and I can do whatever I want with it".
There is no interest in hearing an argument about whether a license
is a valid contract, or the abstract meaning of freedom and property
and fair-use rights. That won't work, and will likely just waste the
writer's energy and the reader's time.

Further, note the emphasis on using a "class of works". Again, this
rulemaking is not about theoretical considerations. One must identify
a concrete category of material. In the last round, some proposals
were rejected as not being a "class of works". This idea is discussed
extensively in terms of requirements, such as (emphasis added):

The Register found that the statutory language required that the
Librarian identify “classes of works” based upon
attributes of the works themselves, and not by reference to some
external criteria such as the intended use or users of the
works. The phrase “class of works” connotes that the
shared, common attributes of the “class” relate to the
nature of authorship in the “works.” Thus, a
“class of works” was intended to be a “narrow and
focused subset of the broad categories of works of authorship ... The
starting point for a proposed exemption of a particular class of
works must be the section 102 categories of authorship: literary
works; musical works; dramatic works; pantomimes and choreographic
works; pictorial, graphic and sculptural works; motion pictures and
other audiovisual works; sound recordings; and architectural
works.

While the word "class" isn't used in a computer-science sense here,
just as a way to think about this for technical people, the
portion discussing "shared, common attributes" could almost be taken
straight from object-oriented programming definitions. In brief, the
above passage might be translated as that the exemption shouldn't
focus on what businesspeople call the "use case", but rather what
computer-scientists call the "design pattern". That is, while the
intended use is important as the basis for the exemption, the
exemption itself has to be constructed in terms of a class (of works).

For example, consider censorware blacklists. The "use case" is
research, investigation, and so, regarding what censorware in
fact has on the blacklists. But the "class of works" is
"compilations consisting of lists of websites blocked by filtering
software applications".

So don't talk about fair-use as a principle in itself. Rather, focus on
practical problems affecting a specific "class of works", as in
perhaps "public domain works released on CSS-protected DVD disks".

This is not a situation where quantity (whether votes or money) is the
key aspect. Rather, it's a case where a detailed, well-constructed,
presentation can have an effect. And this is why an ordinary person
can make a difference here. Better, if done properly, the requirements
can even play into a technical person's strengths in formulating an
argument which needs to meet certain specifications. It's just
critical to keep in mind that this concerns empirical effects, not
ideological axioms.

In fact, when read properly, the documentation for the
rulemaking is in effect a design chart:

In addition to the necessary showing discussed above,
in order to make a prima facie case for a proposed exemption, at least three
critical points should be established.

First, a proponent must attempt to identify
the specific technological measure that is the causal source of the
alleged problem, and show why that technological measure “effectively
controls access to a [copyrighted] work.”

Second, a proponent must specifically
explain what noninfringing
activity the prohibition is adversely affecting.

Third, a proponent must establish that the prevented activity is, in fact,
a noninfringing use under current law.

The important aspect here is to organize the plea for an exemption
into what lawyers call a "fact-pattern":

Problem created by technological measure

Activity needing to be done

Why the activity is legal

For example, in the specific instance of censorware ("filtering software"):

The problem is that the censorware blacklists are encrypted

This prevents in-depth examination of the blacklist contents

Such examination, and publishing small excerpts, is a copyright
fair-use of the blacklist

After this organization, there's unfortunately another "specification"
(emphasis added):

The nature of the Librarian's inquiry is further delineated by the
statutory areas to be examined:

(i) the availability
for use of copyrighted works;

(ii) the availability for use of works for nonprofit
archival, preservation, and educational purposes;

(iii) the impact that the
prohibition on the circumvention of technological measures applied
to copyrighted works has on criticism, comment, news reporting,
teaching, scholarship, or research;

(iv) the effect of circumvention of technological measures on the
market for or value of copyrighted works; and

(v) such other factors as the
Librarian considers appropriate.

...

These statutory considerations require examination and careful
balancing. The harm identified by a proponent of an exemption must
be balanced against the harm that would result from an exemption. In
certain circumstances, an exemption could have a greater adverse
effect on the public than would the adverse effects on noninfringing
uses identified. The ultimate determination of the Librarian must
take all of these factors into consideration. Therefore, a
commenter's analysis should also address these considerations.

All of this boils down to a requirement to argue that the exemption
won't do more harm than good. That is, it's not enough just to find a
fair-use application somewhere, anywhere. It's necessary to argue that
the exemption won't turn into a figleaf to justify wholesale copyright
infringement.

Again, for censorware, the case might proceed in outline that

(i) Censorware-makers won't cease to make blacklists if people are allowed
to examine them (under standard copyright rules)

(ii) Decrypting censorware blacklists allows them to be archived
in human-readable form, and used for educational purposes

(iv) The censorware business has not suffered unfairly from being
criticized

(v) And finally, for other factors, it's very stressful for a
mere mortal to have to worry about being sued

The more these kinds of points are substantiated, the better. What's
being done here is much closer to an analytic examination of various
"test cases", than political theorizing.

How to do it

The Librarian wants comments organized in a certain way:

Comments submitted in the initial comment period should be confined
to proposals for exempted classes. They should specifically identify
particular classes of works adversely affected by the prohibition
and provide evidentiary support for the need for the proposed
exemptions.

For each particular class of works that a commenter proposes for
exemption, the commenter should first identify that class, followed
by a summary of the argument in favor of exempting that proposed
class. The commenter should then specify the facts and evidence
providing a basis for this exemption. Finally, the commenter should
state any legal arguments in support of the exemption. This format
of class/summary/ facts/argument should be sequentially followed for
each class of work proposed as necessary.

Note programmers see this all the time. It's the basic boilerplate
in terms of standards for organizing parts of project. That is, roughly:

descriptive class name

brief summary (i.e., the overview)

implementation details (bulk of argument)

any special particulars

And if you have more than one class, make sure you follow
best-practices and organize all class-specific material locally within
its class, instead of scattering portions globally anywhere. That's
quite straightforward.

Submissions can be done very conveniently, using the Copyright Office
Comment
submission form. It's worth looking over this form before
starting, since the arrangement of the form was itself practically
a summary of the requirements. Besides submitter's information,
there are text boxes for:

"Proposed class or classes of copyrighted work(s) to be exempted"

"Brief summary of the argument(s) in support of the exemption proposed above"